Lockhard v. Avery

ORMOND, J. The question presented upon the record, by the motion to exclude the note from the jury for a variance, is, whether the note is described in the declaration according to its legal effect. .It is described as a note falling due on the 1st January, 1842, disregarding the memorandum attached to it, “to be paid for when started.’’ This memorandum, without the aid of extrinsic proof, is without meaning, and neither anticipates or postpones the time of payment agreed upon in the body of the note. It appears therefore to belong to the class of latent ambiguities, and open to explanation. By reference to the proof, it appears that the note was given for a cotton gin, and that by the agreement of the parties, the note was to be paid when the gin was “ started,” or in other words, when the gin was set at work, and that if it did not perform well another was to he substituted in its place. The intention of the parties doubtless was, that the defendant should have an opportunity of trying the gin, and ascertaining its qualities, before he could be called on for payment. This was clearly a condition inserted in the contract, for the benefit of the defendant, and if the contingency had happened contemplated in the condition, that the gin upon trial did not answer the purpose, he should have pleaded it in abatement, or bar, as the case might have required. The plaintiff was not bound to notice the condition, but might declare upon the positive undertaking of the defendant, to pay by the 1st January, 1842. In the case of a penal bond with condition, the plaintiff may declare on the penalty without noticing the condition, and between that, and the present case, the analogy seems complete. We think therefore the Court did not err in refusing to exclude the note from the jury for a variance, and its judgment is affirmed.